The great reset in the Spratlys dispute
In 1951, the United States convened the San Francisco Peace Conference to discuss the fate of the Spratlys Islands. The Philippines, led by Carlos P. Romulo, took part in the conference but his delegation did not register a claim, unlike Vietnam or even China, and notwithstanding the exclusion of the Chinese from the conference.
The conference led to the 1951 San Francisco Peace Treaty. Its Art. 2(f) provided that “Japan renounces all right, title and claim to the Spratly Islands.” The provision regarded the Spratlys as a single unit previously subject in its entirety to Japanese sovereignty.
The Philippines formally and internationally expressed interest in the islands only in 1956, following a claim lodged by Tomas Cloma over an area he called “Freedomland.”
In 1978, President Marcos advanced our claim over the Spratlys by issuing PD 1596, which continued the 1951 fiction of the Spratlys as a single territory. We claimed full sovereignty over all maritime features, waters, and seabed within a polygonal boundary, but we did not name or count the features inside it.
The initial silence of the Philippines about the Spratlys is what international lawyers would call the Gordian knot of the “critical date.” The critical date is the point of crystallization of claims. For international tribunals, acts of sovereignty performed by a state over a contested territory before the critical date deserve full evidentiary weight, whereas those performed after such date are of no consequence, except for the consolidation of an existing claim (Island of Palmas Arbitration, 1928; Indonesia/Malaysia, 2002).
If the critical date is set in September 1951, the Philippines would be hard-pressed to explain its silence at the peace conference. But then, the critical date could also be set in 1889 when the United Kingdom published its claim to Spratly Island and Amboyna Cay, or 1933 when France occupied five features, including Pag-asa, or in 1939 when Japan enclosed 13 features, again, including Pag-asa. Throughout those periods, the US, our colonial master, did not protest.
However, unlike other territorial disputes, the Spratlys contest may be said to have a fluid critical date, depending on the configuration of the disputed area. And in 2016, when the South China Sea Arbitral Award was issued, our fortunes over the Spratlys changed for the better. The Arbitral Award reset the critical date to July 12, 2016.
Although territorial issues were beyond its scope, the Arbitral Award broke up the Troung Sa/Nansha Qundao/Kalayaan Island Group (KIG) into individual rocks or high-tide elevations, with none of them able to generate more than a territorial sea (TS). It declared that there is nothing in the United Nations Convention on Law of the Sea (Unclos) that countenances a claim to the Spratlys by China, the Philippines, and any other littoral state as a single territory or archipelago. More importantly, it declared that there is nothing in the history of the Spratlys prior to Unclos that would justify its treatment as an archipelago under international law, similar to the Svalbard under a 1925 treaty.
Having stripped the KIG of its boundary and precluded the Vietnamese Truong Sa and the Chinese Nansha Qundao claims, the Arbitral Award (paragraphs 573-576) reconfigured the disputed territory into individual rocks and their TS. It simplified the nature of the dispute into a contest between acts of sovereignty over specific rocks. It restarted the contest.
The Philippines must now consolidate title over each of the maritime features it occupies or claims through effectivités or acts of administration with intent to exercise sovereignty (Nicaragua v Colombia, 2012). Hence, the proposed new West Philippine Sea baselines law. It will keep us in the race, or maybe even put us ahead of it.
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Melissa Loja has a Ph.D. in international law. Romel Bagares teaches international law in two Manila law schools.
